Disqualification by INEC of candidates: Matters arising

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GUARDIAN EDITORIAL

March 30, 2007

INEC’s disqualification of candidates: Matters arising

ON Monday, April 2, 2007, the Court of Appeal will hopefully lay to rest the controversy surrounding the disqualification of Vice President Atiku Abubakar from contesting in next month’s general elections. The impending judgment, along with recent rulings affirming the rights of other candidates to contest the election in various capacities, has put the Independent National Electoral Commission (INEC) on a constitutional spot, vis-a-vis the observance of the rule of law. So far, the courts have consistently declared that INEC has no power to disqualify any candidate who is constitutionally eligible to contest.

Curiously, Prof. Maurice Iwu, Chairman of INEC that technically effected the disqualification had observed that the commission has no power to disqualify any candidate. Yet by excluding Atiku and others from the list of candidates cleared to contest, INEC has more or less displayed a power to disqualify. Iwu had admitted that INEC’s action in releasing the list was only in exercise of its powers to verify the particulars and information provided by the candidates to ensure that they meet the criteria clearly outlined in the 1999 Constitution.

The legal semantics adopted by the INEC chairman is certainly not helping matters. It is clear that INEC approved 24 candidates to contest the presidential election slated for April 21, 2007. The Vice President’s name is not included. Similarly, the commission excluded former Anambra Governor, Dr. Chris Ngige and current governor Peter Obi, among others, from the list of 479 cleared governorship candidates. At the same time, Iwu has consistently, almost desperately, been laying a foundation for INEC’s unwillingness to reappraise its decision.

The most alarming perhaps of the commission’s gestures is its assumption of a tone of finality over its action. Virtually, the commission has declared that since the time allowed for substitution of candidates’ names is officially over, no court could direct it otherwise. The INEC Chairman insisted that anyone that is aggrieved and has the backing of the courts could pursue his grievance after the elections. We believe that this position is not only high handed, it is an assumption of judicial powers, and indeed preemptive of Abubakar’s matter, and those of others, pending in court.

We acknowledge that INEC’s onerous assignment is to conduct the elections on April 14 and 21. However, the commission for long chose to ignore public concerns and criticisms over its slow actions. It would seem that having suddenly discovered that time was not on its side, it has decided to formulate policies to see it through, but with scant regard to their constitutional implications. The assurance of its chairman that the commission is mindful of the constitution obviously is not sufficiently convincing in the light of actions being contemplated by the commission.

While formally releasing the list of cleared candidates, Iwu declared: “Every step taken by the commission and every policy we have initiated or pursued, whether it pertains to the 2007 elections or not, has paid heed not only to the provisions of the constitution but also to the yearnings and aspirations of Nigerians to have elections that will reflect their true will.”

In another breath, the commission declared that it would respond to court summons only when it is conducive for it to do so. In the words of Iwu, the commission has resolved to contest every court decision rendered after the time limit provided by the Electoral Act for the substitution of candidates. “After the election, parties may either continue the cases in regular court or proceed to elections petition tribunal.” He emphasised that if INEC accedes to court injunctions seeking to change candidates now, “fundamental logistical problems would be created and this may critically affect the ultimate efficiency and success of the election.”

In the light of the court ruling two days ago allowing Ngige to run, and declaring that INEC had no power to disqualify any candidate who is constitutionally eligible to contest, has not INEC thereby created an image and constitutional problem for itself? The commission’s dilemma is more pronounced because some other courts have made similar pronouncements, as in the case of Prince Nicholas Ukachukwu, the governorship candidate of the All Nigeria Peoples Party (ANPP) in Anambra State.

In the case of Atiku and the Action Congress, against INEC, the Vice President’s main grouse is that what INEC did amounted to disqualifying him; that the commission had no such powers; and that the court should restrain it by an order of injunction from excluding him from the list of presidential candidates.

Assuming that the court rules in favour of Vice President Abubakar, will it not amount to disobedience of court order, and contempt of court, for INEC and its chairman to insist on the policy of deferring the dispute till after the elections? Is INEC’s latest position not inconsistent with its earlier pronouncement, made through its information and publicity committee chairman, Mr. Phillip Umeadi (Jnr.) that the commission would obey any court decision given in respect of Abubakar?

The Vice President is disputing his indictment by the Economic and Financial Crimes Commission (EFCC) and the White Paper on the Bayo Ojo-led Administrative panel. Probably, INEC could have amended the incongruous position in which it found itself if it had exercised caution on the controversy surrounding the indictment and the fact that various judicial pronouncements so far tend to cast doubts on the Federal Government’s action. In any case, INEC should be bound by the Electoral Act, as much as it is bound by the Constitution. Under Section 35(5) of the Act, only the courts can disqualify candidates if there is a valid reason to do so.

Without actually stating why Abubakar’s name was not in the approved list, Prof. Iwu laboured to link it with the EFCC and the Administrative Panel’s indictment. For instance, he pointed out that while section 35(2) of the 2006 Electoral Act only refers to the disqualification of candidates who have deposed to false information in their affidavits, “it does not, in the opinion of the commission and in the opinion of legal experts we have consulted, refer to those who have given correct information, but who are precluded or disqualified by the constitutional provisions.”

Such arguments tend to suggest that Abubakar is excluded on account of his indictment. It also raises suspicion as to whether INEC is not, in the words of the President of Nigeria Labour Congress (NLC), Mr. Abdulwahed Omar, “masking the execution of a script that is pre-designed, aimed at preventing certain people from contesting the polls.” This would be most unfortunate, as it could also signify a contrivance to truncate the election, the fear of which is already rife in many quarters.

The commission inadvertently or otherwise, boxed itself into this legal and constitutional corner. But it cannot hope to escape by disregarding judicial authority or acting in a way to frustrate the conduct of the elections. The only way out is for INEC to be transparent and impartial, allow a level playing field for all candidates within constitutional stipulations; provide the atmosphere for the conduct of free and fair elections; and allow the courts to perform their judicial and oversight functions.

 

 

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